6 New Changes in Industrial Design Protection in the Intellectual Property Act 2022

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To ensure compliance with international commitments after joining the new generation trade agreements, including CPTPP, EVFTA and RCEP, Vietnam has revised many regulations related to intellectual property rights,1 including industrial designs under the Third Amendment to the Intellectual Property Act 2005 (the “Intellectual Property Act 2022”) which was just passed by the National Assembly on June 16, 2022. The Intellectual Property Act 2022 replaces the First Amendment 2009 and the Second Amendment of the Intellectual Property Act 2005 (the “Intellectual Property Act 2005”). The IP 2022 Act will enter into force on January 1, 2023, with the exception of the provisions on sound marks which have been in force since January 14, 2022 and the provisions on the protection of experimental data for agricultural chemicals which will be in force on from January 14, 2024. Bross & Partners is updating 6 key industrial design changes below.

Redefining industrial design

The Intellectual Property Act 2022 adds more legal signs such as parts of products, complex products, and visible attributes when exploiting a design and redefines industrial design, ie. an industrial design is the outward appearance of a product or part thereof to be assembled into a complex product, represented by shapes, lines, colors or a combination thereof and visible in the process of operating usefulness of the product or complex product.

Delayed publication and validity of industrial designs filed under the Hague Agreement

The Intellectual Property Act 2022 2022 allows for the first time a deferment period for an industrial design of up to 7 months, provided that the applicant’s request for deferment is made when filing . In the absence of a request for deferment of publication, the application for registration of an industrial design or model is published within a period of 2 months after its acceptance as to form.

Industrial designs filed under the Hague Agreement on the International Registration of Industrial Designs Designating Vietnam take effect from the date ONIPV issues a decision granting protection or from the day after the expiry date of the 6-month period calculated from the date on which the International Bureau publishes the application for international registration of this industrial design or model.

Right to registration of a state-owned industrial design

The Intellectual Property Act 2022 provides that except in the case of industrial designs in the field of national defense and security, any organization responsible for managing scientific and technological tasks using the budget of the State shall have the right to register such industrial designs automatically and without reimbursement. .

In the case of an industrial design or model in the field of national defense and security, the right to register it belongs to the State if this industrial design or model is entirely created using the budget of the State. ‘State. If an industrial design is partially funded by the state budget, the right to register that industrial design would be determined in proportion to the proportion of the state budget allocated to the process of creating the industrial design.

Where an industrial design is determined to be government owned, the design application may be filed through the government owner’s representative who is one of the following three subjects: a ) State Capital Enterprise Management Committee (CMSC); (b) Ministries or ministerial-level agencies, people’s committees of provinces and cities run by the central government; (c) National Capital and Investment Company (SCIC).

2 ways to oppose industrial design applications

The IP Law 2022 adds for the first time a new mechanism allowing a third party to object to an application for an industrial design in addition to the written opinion of the third party maintained unchanged. It should be noted that while the written opinion of the third party would only serve as a reference source for the examination of a design application, it seems that the legislator is seeking to develop an additional mechanism to oppose an application. of an industrial design as a new, independent opposition procedure (and not a source reference for processing a design application).

More importantly, unlike the written opinion of a third party which can be filed at any time from the moment a design application is published in the Official Journal of Industrial Property until before the date of the decision of granting the title of protection, the new mechanism allows any third party to file an opposition to an industrial design application only within 4 months of the date of publication of the design application.

5 Legal Grounds for Opposing Industrial Design Applications

A written objection to the grant of an industrial design may invoke and prove one of the following five legal grounds:

  1. The subject matter sought for registration does not fully meet the patentability criteria
  2. The applicant is not entitled to register an industrial design
  3. The subject matter sought for a design patent, although having fully met the criteria for patentability, is not a design application with the priority date or the earliest filing date
  4. More than one identical or substantially different design application is filed on the same day by several applicants and these applicants have not yet reached an agreement to withdraw any of these filed applications
  5. The design application as amended or supplemented expands the scope of the disclosed subject matter described in the application or changes the nature of the subject matter for registration specified in the application.

3 Legal Grounds for Revocation of an Industrial Design Patent

A granted industrial design patent may be canceled in whole or in part by any third party if one of the following 3 reasons is found:

  1. The applicant has not had the right to register an industrial design, nor has he been granted such a right.
  2. The design application does not meet the criteria for protection, namely novelty, inventive step and industrial applicability; or the design request is considered contrary to social and public morals
  3. The design application as revised or supplemented expands the scope of the disclosed subject matter described in the application or changes the nature of the objects to be recorded indicated in the application

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